Eldorado Transportation Corp. v. Town of Lexington

5 Mass. L. Rptr. 173
CourtMassachusetts Superior Court
DecidedApril 9, 1996
DocketNo. 907624
StatusPublished

This text of 5 Mass. L. Rptr. 173 (Eldorado Transportation Corp. v. Town of Lexington) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eldorado Transportation Corp. v. Town of Lexington, 5 Mass. L. Rptr. 173 (Mass. Ct. App. 1996).

Opinion

Borenstein, J.

The plaintiff, Eldorado Transportation Corp. (Eldorado), brings this action challenging the award of a 1991 Lexpress Mini-Bus contract to a former defendant, A-Connoisseur Transportation Corporation (A-Conn).1 Eldorado alleges that the defendants, Town of Lexington (Lexington) and its Chief Procurement Officer, Richard White (White), failed to follow its bid specifications as well as the provisions of M.G.L.c. 30B in accepting and evaluating the bid of A-Conn and the bid of an additional bidder on the contract, Share-A-Ride, Inc. Eldorado further alleges that this failure by Lexington and White constitutes a breach of a settlement agreement between them entered into as a result of a dispute arising from a previous bid process on the contract. Eldorado asserts that the defendants failed to act in a fair and impartial manner contrary to public policy and seeks damages. For reasons set forth below, the Court finds for the defendants on all counts.

I.FINDINGS OF FACT

A. THE PARTIES

1. The plaintiff, Eldorado Transportation Corp., is a Massachusetts Corporation engaged in the business of providing bus transportation services with a principal place of business at 207 Folien Road, Lexington, Massachusetts.

2. The defendant, Town of Lexington, acting by and through its governing body, the Board of Selectmen, is a municipality within the Commonwealth of Massachusetts with a principal place of business at 1625 Massachusetts Avenue, Lexington, Massachusetts.

3. The defendant, White, is a natural person who at all times relevant hereto was Town Manager and Procurement Officer for the Town of Lexington.

B. THE FIRST CONTRACT BID & SETTLEMENT AGREEMENT

4. In September of 1989, the Lexington Transportation Advisory Committee (TAC), a committee established by the Lexington Board of Selectmen to advise and make recommendations to the Town Manager on transportation issues, began discussions concerning the extension of the contract for providing local minibus transportation, the Lexpress contract.

5. In February of 1990, an invitation for proposals was released by Lexington regarding the Lexpress contract.

6. Eldorado, A-Conn, Share-A-Ride and Arthur Corporation submitted proposals in response to Lexington’s invitation.

7. After reviewing and evaluating the proposals, Lexington awarded the Lexpress contract to Share-A-Ride.

8. On April 27, 1990, Lexington and Share-A-Ride entered a contract pursuant to which Share-A-Ride was to provide the Lexpress service.

9. Alleging an apparent conflict of interest as well as Lexington’s failure to follow the provisions of M.G.L.c. 30B in awarding the Lexpress contract, Eldorado challenged the award of the contract in a lawsuit against Lexington, White, and Share-A-Ride, Eldorado Transportation Corp. v. Town of Lexington, et al., Civil Action No. 90-4646.

10. The action referred to in paragraph 9 was settled by an agreement dated September 4, 1990.

11. Pursuant to the September 4, 1990 settlement agreement, Eldorado agreed to dismiss Civil Action No. 90-4646 in consideration of Lexington’s agreement to:

a) rescind the award of the Lexpress contract to Share-A-Ride;
b) deem Eldorado a responsible bidder and, in subsequent bidding processes, use only adverse information, if any, discovered after September 4, 1990;
c) rebid the Lexpress contract prior to October 1,1990 in accordance with the provisions of M.G.L.c. 30B;
d) notify the evaluation committee for the rebidding that the bringing of the first lawsuit will in no way adversely affect future bids of Eldorado;
e) notify the evaluation committee for the rebidding that Eldorado was a responsible bidder;
f) appoint a neutral observer, not employed by or affiliated with any of the parties to the lawsuit to serve as a witness to the rebidding process;
g) provide the neutral observer with duplicate copies of the bid proposals at the time of their submission;
h) award the Lexpress contract on or before October 15, 1990;
i) allow the neutral observer to open his copies of the bid proposals in the presence of interested bidders on October 16, 1990, the day after the deadline for awarding the Lexpress contract.

[174]*17412. In accordance with the terms of the settlement agreement and the provisions of M.G.L.c. 30B, Lexington issued a request for proposals (RFP) on September 20, 1990 that required the submission of all proposals on the Lexpress contract by 11:00 a.m. on October 5, 1990.

C. THE CONTRACT REBID

13. In accordance with M.G.L.c. 30B, White delegated the bid procurement evaluation process to Pauline Burke who had been Lexington’s transportation coordinator for the previous ten years.

14. Prior to 11:00 a.m. on October 5, 1990, proposals were submitted by Eldorado, A-Conn, and Share-A-Ride.

15. In accordance with the RFP, each bidder submitted two copies of its nonprice proposals that did not contain the amount of their bid and two copies of its price proposal that specified the amount of their offer.

16. As the nonprice proposals were to be evaluated by the evaluation committee without consideration of the price proposals, each bidder was required to submit the price and nonprice proposals in separate, sealed envelopes.

17. At 10:40 a.m. on October 15, 1990, Terry Bell submitted each of Share-A-Ride’s proposals in sealed envelopes to Lexington’s procurement officer, James McLaughlin.

18. Realizing that a photocopy and not an original had been submitted as part of the Share-A-Ride proposal, Terry Bell returned to the office of James McLaughlin.

19. Upon returning to the office, Terry Bell placed a page on the counter between herself and James McLaughlin. McLaughlin did not read the figures, although he recognized it to be a price proposal form.

20. In addition to James McLaughlin, Pauline Burke was present in her capacity as a town representative. She did not see the figures on the Share-A-Ride price proposal brought in by Bell.

21. After informing Terry Bell that he could not accept an unsealed document, James McLaughlin handed Bell an envelope and accepted the envelope from Bell after she placed the proposal inside and sealed the envelope (the “Share-A-Ride” envelope).

22. After writing “Share-A-Ride” on the outside of the envelope, James McLaughlin confirmed that the submission deadline of 11:00 a.m. had not been reached or passed by looking at his watch which he had set that morning by synchronizing it with NYNEX. The 11:00 a.m. deadline had not been reached or passed.

23. In addition to checking his watch, James McLaughlin called NYNEX and invited interested representatives from all other bidders, including Eldorado, to verify that according to NYNEX the 11:00 deadline had yet been reached or passed.

24. James McLaughlin placed the “Share-A-Ride” envelope with the package of documents to be considered by Lexington.

25.

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Bluebook (online)
5 Mass. L. Rptr. 173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eldorado-transportation-corp-v-town-of-lexington-masssuperct-1996.